Citation Nr: 9934815
Decision Date: 12/14/99 Archive Date: 12/16/99
DOCKET NO. 98-06 845 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Roanoke, Virginia
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Appellant
ATTORNEY FOR THE BOARD
Mary C. Suffoletta, Associate Counsel
INTRODUCTION
The veteran had active service from January 1961 to August
1964. The appellant is his widow.
This matter comes to the Board of Veterans' Appeals (Board)
from a February 1997 RO rating decision that denied service
connection for the cause of the veteran's death. The
appellant submitted a notice of disagreement in April 1997,
and the RO issued a statement of the case in April 1997. The
appellant testified at a hearing in May 1997. The RO hearing
officer requested additional development of the record. In
March 1998, a supplemental statement of the case was issued.
The appellant submitted a substantive appeal in March 1998.
In April 1999, the appellant withdrew her request for another
hearing.
Recently received documents show that the appellant has been
awarded a monetary settlement to resolve a tort claim based
on her husband's treatment at a VA medical Center. No claim
under 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) has yet
been adjudicated, and the Board has no jurisdiction to
adjudicate such a claim in the first instance. The appellant
is advised that she may begin to pursue such a claim (subject
to any relevant portions of the settlement agreement) by
notifying the RO.
FINDING OF FACT
The appellant has not submitted competent (medical) evidence
linking the cause of the veteran's death due to anxiety,
first found many years after service, to an incident of
service or a service-connected disability.
CONCLUSION OF LAW
The claim for service connection for the cause of the
veteran's death is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
To establish service connection for the cause of the
veteran's death, the evidence must show that disability
incurred in or aggravated by service either caused or
contributed substantially or materially to cause death. For
a service-connected disability to be the cause of death, it
must singly or with some other condition be the immediate or
underlying cause or be etiologically related. For a service-
connected disability to constitute a contributory cause, it
is not sufficient to show that it casually share in producing
death, but rather, it must be shown that there was a causal
connection. 38 U.S.C.A. § 1310 (West 1991); 38 C.F.R. §
3.312 (1999).
In order to establish service connection for a disability,
the evidence must demonstrate the presence of it and that it
resulted from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303
(1999).
Where a psychosis becomes manifest to a degree of 10 percent
within one year from date of termination of active service,
it shall be presumed to have been incurred in active service.
38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999);
38 C.F.R. §§ 3.307, 3.309 (1999).
Secondary service connection may be granted for disability
that is proximately due to or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (1999).
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well-grounded
claim; that is, evidence which shows that her claim is
plausible, meritorious on its own, or capable of
substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). If she has not presented
such a claim, her appeal must, as a matter of law, be denied,
and there is no duty on the VA to assist her further in the
development of the claim. Murphy at 81. "The United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999)
(hereinafter, "the Court")" has also stated that a claim must
be accompanied by supporting evidence; an allegation is not
enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a
claim of service connection, this generally means that
evidence must be presented which in some fashion links a
current disability to a period of military service, or as
secondary to a disability which has already been service-
connected. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.310;
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In
order for a claim to be well-grounded, there must be
competent evidence of current disability (a medical
diagnosis) ...; of incurrence or aggravation of a disease or
injury in service (lay or medical testimony), ...; and of a
nexus between the in-service injury or disease and the
current disability (medical evidence)." Caluza v. Brown, 7
Vet. App. 498 (1995).
A lay person's opinion cannot alone provide a foundation for
a well-grounded claim when the opinion requires expert
knowledge, such as the medical knowledge necessary to
establish a causal link between a service-connected
disability and another post-service disability. In addition,
a medical statement that is speculative will not support a
well grounded claim. Franzen v. Brown, 9 Vet. App. 235
(1996); Johnson v. Brown, 9 Vet. App. 7 (1996); Gregory v.
Brown, 8 Vet. App. 563 (1996); Tirpak v. Derwinski, 2 Vet.
App. 609 (1992).
In this case, the service medical records are negative for
any manifestations of a mental disorder. Records at the time
of the veteran's medical examination for discharge from
service in 1964 report normal neurologic and psychiatric
systems. There were neither reports nor complaints of
anxiety, nor were suicidal ideations noted, in service or
within the one-year presumptive period following discharge.
Hence, a mental disorder and its manifestations were not
present in service.
The post-service medical records do not show symptoms of any
anxiety reaction or depression until the mid-1980's, nearly
20 years after the veteran's discharge from service. VA
medical records dated in August 1985 show that the veteran
was treated for chronic alcoholism. The veteran also
underwent a psychiatric consultation at that time. Upon
examination, the veteran appeared tense, anxious, edgy, and
worried; he was oriented for time, place, and person. His
attention and concentration were normal; his memory, recall,
and judgment were intact. There was no evidence of a thought
disorder, or of suicidal ideations or plans. The examiner's
impression was acute and chronic alcoholism. While a VA
social worker noted in August 1985 that the veteran had never
been through any treatment programs and that he "may be
suffering from PTSD" (post-traumatic stress disorder), there
was no competent medical diagnosis of PTSD or any mental
disorder other than his alcohol dependence at that time.
Records show that the veteran was treated for detoxification
only, and that he refused consideration of other VA
rehabilitation programs.
VA medical records show that the veteran was diagnosed with
an anxiety reaction and with a history of alcohol abuse in
September 1996, just prior to his death. Records show that
the veteran had been admitted to a VA facility for treatment
of depression with suicidal tendency, and alcohol dependence.
The veteran reported marital problems and that he recently
lost his job. The medical evidence of record appears to link
the veteran's anxiety reaction to his family and employment
situations. There is no medical evidence of record that
links the veteran's recent anxiety, found many years after
service, to an incident of service. A claim is not well
grounded where there is no medical evidence showing a nexus
between the claimed disability and service. Caluza, 7 Vet.
App. 498.
Statements of the appellant in the record are to the effect
that the veteran was deeply disturbed because of his
experiences in Vietnam. The appellant also testified at a
hearing in May 1997 that, in the years preceding the
veteran's death, he suffered from nightmares, flashbacks, and
other frustrations relating to his experiences in Vietnam.
This lay evidence is not sufficient to support a claim for
service connection of a disability based on medical
causation. Espiritu v. Derwinski, 2 Vet. App. 498 (1992).
A certificate of death shows that the veteran died in
September 1996. The cause of death was a self-inflicted
shotgun wound.
Although records in the claims folder dated in August 1985
reflect that the veteran reported that he had been drinking
since he came back from Vietnam, alcohol abuse is not
considered a disability to have been incurred in active
service because such a condition is considered due to willful
misconduct. 38 C.F.R. § 3.301(a),(c)(2) (1999); VAOPGCPREC
2-97; VAOPGCPREC 2-98.
In this case, there is no competent (medical) evidence
linking the veteran's anxiety reaction, first found many
years after service, to an incident of service. Hence, the
claim for service connection for the cause of the veteran's
death must be denied as not well grounded.
There is no allegation, and the evidence does not appear to
suggest, that the veteran would have been entitled to a total
disability rating for compensation purposes for ten or more
years immediately preceding his death, such as to entitle the
appellant to Dependency and Indemnity Compensation under 38
U.S.C.A. § 1318. See Green v. Brown, 10 Vet. App. 111
(1997).
The appellant is advised that she may reopen the claim for
service connection for the cause of the veteran's death at
any time by notifying the RO of such an intention and
submitting supporting evidence. An example of supporting
evidence is a medical opinion linking the cause of the
veteran's death to an incident of service. The testimony of
the appellant seems to make the assertion that the veteran
had a psychiatric disability with related alcohol abuse that
caused or contributed to the veteran's death. She is advised
that she may reopen the claim for service connection for the
cause of the veteran's death based on such a claim by
notifying the RO and submitting evidence showing a plausible
basis for the claim. Robinette v. Brown, 8 Vet. App. 69
(1995).
ORDER
The claim for service connection for the cause of the
veteran's death is denied as not well grounded.
J. E. DAY
Member, Board of Veterans' Appeals